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Lin ZHAO and Chris LIU, lawyers from Beijing East IP Law Firm, represented producers and co-producers (referred to as “the film companies”) of the movie When Larry Met Mary recently, and won the first instance lawsuit filed by Shanghai Animation Film Studio (referred to as “Shanghai Animation”), and Shanghai Putuo District People’s Court rejected Shanghai Animation’s claims of copyright infringement and unfair competition.
When Larry Met Mary is a romantic comedy film directed by Zhang WEN. Beier BAO played the role of Yao LU, who has a serious fear of expressing his love to Li MA, played by Jia SONG. A decade of long-time courtship evokes the resonance and memories of the post-80s generation. In 2017, Shanghai Animation filed a lawsuit against the film companies and alleged that a less than two-minute scene, as Yao LU and his friends wearing similar Calabash Brothers costumes in a birthday party, constitutes copyright infringement and unfair competition. Shanghai Putuo District People’s Court accepted this case in January 2018.
Lin ZHAO and Chris LIU, lawyers from Beijing East IP Law Firm represented ten film companies as defendants in this lawsuit, and Anman QIU, senior expert in the copyright field also provided valuable advice. Shanghai Putuo District People’s Court issues the first instance judgment, which is favorable to the film companies, and rejected Shanghai Animation’s claims of copyright infringement and unfair competition.
In its judgment, the court mainly elaborated on the legitimacy of the disputed scene from the perspective of fair use under the copyright law, and from the perspective of good faith intention without taking free ride or tarnishing the work of Calabash Brothers and the appropriate way of use causing unfair competition.
Furthermore, this case also involves a multiple of issues that worth consideration, including (1) whether the image of a cartoon character is subject to copyright protection? If not, then how to claim protection under the copyright frame? (2) whether a cartoon character, as a fictional character, enjoys a right of reputation similar to real persons? If not, then is there any other protection available under the frame of copyright, trademark or unfair competition? (3) how to draw a reasonable line between the right of “forbidden to use” enjoyed by the copyright owner and the public attribute of the published work and the encouragement of culture dissemination? (4) what are the factors to be considered in determining fair use, and what is the criteria to be used? This case has important reference value for clearing these issues.
Beijing East IP Ltd./Beijing East IP Law Firm (collectively “BEIP”) was founded in 2002 by Dr. Lulin Gao, the first commissioner of the State Intellectual Property Office, and several senior experts in the field of intellectual property law, located the headquarter in Beijing’s top class office building. Through the development of the firm, BEIP had set overseas branches in Silicon Valley, Tokyo and London, and within China in Ningbo and other places. The team of BEIP has nearly 200 personnel, including one hundred professionals from first-class universities in China, the United States, and Japan with degree of PhDs and masters. They possess not only good and professional education backgrounds on technology and law. In addition, the professional process team and advisory experts work together to support BEIP to provide an efficient, professional and comprehensive services to clients. For the past 16 years, BEIP has been focusing on providing all-round legal services related to intellectual property rights for domestic and foreign companies, and has represented many typical cases. The timely, comprehensive, cost-optimized and business-thinking services have won unanimous praise from customers.